CAAF will hear oral argument in the Air Force case of United States v. Jones, No. 14-0057/AF (CAAFlog case page) on Wednesday, November 19, 2014. In the wake of last term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), CAAF will revisit the impact of the appointment of one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate) to the Air Force Court of Criminal Appeals. In Janssen, CAAF found Mr. Soybel’s appointment to be invalid after concluding that Congress did not give the Secretary of Defense or the Judge Advocate General the authority to appoint a civilian as an appellate military judge.
Writing for the court in Janssen, Judge Stucky considered the possibility of saving the CCA’s action in the case by application of the de facto officer doctrine. That doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180 (1995) (citing Norton v. Shelby County, 118 U.S. 425, 440 (1886)). But under the facts of Janssen, where the appellant challenged Judge Soybel’s appointment as soon as he learned of it, CAAF declined to apply the doctrine, noting that the Supreme Court also declined to apply the doctrine in Ryder because it “would create a disincentive to raise Appointments Clause challenges with respect to questionable judicial appointments.” Janssen, slip op. at 13-14 (quoting Ryder, 515 U.S. at 183).
However, in Jones the appellant lodged practically no objections. After Second Lieutenant Jones was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of drunken operation of a motor vehicle, assault consummated by a battery, and conduct unbecoming, in violation of Articles 111, 128, and 133, and was sentenced to confinement for six months, total forfeitures, and a dismissal, his case was docketed at the Air Force CCA. Mr. Soybel was then appointed to the CCA by the Judge Advocate General of the Air Force, and Mr. Soybel was part of a three-judge panel of the CCA that affirmed the findings and sentence in Jones. But the CCA reconsidered the case after the Secretary of Defense made a second appointment of Mr. Soybel to the court. Mr. Soybel also participated in the reconsideration, and again the CCA affirmed the findings and sentence. Appellant asserted a number of errors during the CCA’s reviews, but he did not challenge the legality of Mr. Soybel’s appointment to the court.
Appellant eventually raised the issue of Mr. Soybel’s appointment – for the first time – at CAAF. CAAF granted review of Jones as a trailer case to Janssen, and then CAAF decided Janssen. Yet rather than remand Jones for a new review consistent with Janssen, CAAF did something very different. On June 27, 2014, (over two months after deciding Janssen) CAAF issued the following order:
No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL’S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS’ DECISION IN APPELLANT’S CASE. SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).
Briefs will be filed under Rule 25.
In plain English, CAAF is considering whether it should affirm the Air Force court’s decision in Jones despite the fact that Mr. Soybel improperly participated in that decision.
Appellant’s position is relatively straightforward:
This Court should not apply the de facto officer doctrine because Mr. Soybel’s appointment to the Air Force Court did not involve merely a technical defect in the appointment. Rather, his appointment was defective because it involved the Secretary of Defense usurping the appointment power of Congress and the President of the United States, in violation of the Appointments Clause of the United States Constitution. Constitutional violations of this magnitude create jurisdictional error that the Supreme Court will not cure with the de facto officer doctrine.
App. Br. at 4. Appellant’s brief relies rather heavily on an interpretation of the Supreme Court’s decision in Nguyen v. United States, 539 U.S. 69 (2003), asserting that Nguyen “offers almost a carbon copy factual scenario to Appellant’s case . . .” App. Br. at 7. Nguyen (and a companion case) involved the participation of territorial (Article IV) judges in a panel of the Ninth Circuit that reviewed a decision from the District Court for the Northern Mariana Island; a curious fact pattern worthy of some illustration:
The highly unusual presence of a non-Article III judge as a member of the Ninth Circuit panel occurred during special sittings in Guam and the Northern Mariana Islands. When the Court of Appeals heard arguments in Guam, the Chief Judge of the Ninth Circuit invited the Chief Judge of the District Court for the Northern Mariana Islands to participate. A judge of the District Court of Guam was similarly invited to participate in appeals heard while the Ninth Circuit sat in the Northern Mariana Islands.
The panel affirmed petitioners’ convictions without dissent. 284 F.3d 1086 (2002). Neither Nguyen nor Phan objected to the composition of the panel before the cases were submitted for decision; neither petitioner sought rehearing after the Court of Appeals rendered judgment to challenge the panel’s authority to decide their appeals. Each did, however, file a petition for certiorari raising the question whether the judgment of the Court of Appeals is invalid because of the participation of a non-Article III judge on the panel. In accordance with this Court’s Rule 10(a), we granted the writ, 537 U. S. 999 (2002), to determine whether the Court of Appeals had “so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s supervisory powers.” Pet. for Cert. in No. 01-10873, p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following reasons, we find these to be appropriate cases for the exercise of that power.
Nguyen, 539 U.S. at 73-74. Appellant’s argument does not assert that CAAF should exercise supervisory power over the operation of the Air Force CCA in the manner sought by the petitioners in Nguyen, perhaps recognizing that CAAF lacks such broad authority. See Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (“[T]he CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice, or to act as a plenary administrator even of criminal judgments it has affirmed.”). Rather, Appellant’s argument is that the circumstances of Mr. Soybel’s participation in the decisions of the Air Force court are substantively the same as the circumstances of the participation of the non-Article III judges in the decisions of the Ninth Circuit:
[In Nguyen t]he Supreme Court refused to find waiver, refused to apply the de facto doctrine, and suggested that doing either under these circumstances would be improper. [539 U.S.] at 81. The Court said, “[w]hatever the force of the de facto officer doctrine in other circumstances, an examination of our precedents concerning alleged irregularities in the assignment of judges does not compel us to apply it in these cases.” Id. at 77. The Court explained that application of the de facto officer doctrine was inappropriate because it would “incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld.” Id. at 80-81. The Court drove home the point by saying “[e]ven if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel.” Id. This rationale is very similar to early Supreme Court precedent from 1886, rejecting application of the de facto doctrine, where the Court said:
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.
Norton v. Shelby County, 118 U.S. 425, 441-42 (1886).
App. Br. at 8-9 (emphasis in original).
The Government’s answer focuses on Appellant’s failure to raise this issue at an earlier stage:
Appellant should not be rewarded for failing to raise a commonly recognized issue and then be permitted to complain about it to a higher appellate court at time he sees fit. Acceptance of untimely complaints runs contrary to the spirit of the de facto officer doctrine and invites appellate gamesmanship. Therefore, Appellant’s belated request for relief before this Honorable Court represents an untimely request for relief that permits application of the de facto officer doctrine to AFCCA’s decision in Appellant’s case.
Gov’t Br. at 7-8. But the Government also highlights an important distinction between direct and collateral attacks on an appointment:
“Prompt” challenges conferred upon a proper forum are particularly important because the de facto officer doctrine distinguishes between collateral attacks (challenges that an official is “improperly in office”) and direct attacks (challenges that an officer lacks sufficient qualifications). Horwitz v. State Bd. of Medical Examiners of State of Colo., 822 F.2d 1508, 1516 (10th Cir. 1987).
Gov’t Br. at 7. A footnote adds:
This case would represent a collateral attack because Appellant’s arguments pertain to the manner in which Judge Soybel was appointed and not upon Judge Soybel’s qualifications for which he is eminently qualified, especially given his prior active duty service as a military appellate judge on the same court. (See J.A. at 2-7.)
Gov’t Br. at 7 n.4. The Government’s brief also distinguishes this case from Nguyen:
This case is markedly different from Nguyen. First, this case does not represent the need for this Court’s exercise of “supervisory powers” because Nguyen is not an Appointments Clause case but instead involved the misapplication of statutory law by the lower appellate court in how it conducts its appellate business. Id. at 80-81. Second, as detailed above, Nguyen dealt with the qualifications of the non-Article III judge (direct attack) rather than constitutionality of the judge’s appointment to his position as judge (collateral attack). In this regard, Nguyen does not represent any deviation from the de facto officer doctrine but instead reinforces the rationale that direct attacks are permissible issues for review because they involve jurisdictional issues for which the de facto officer doctrine would not apply.
Gov’t Br. at 9. The Government’s brief clearly hopes that CAAF will focus on Appellant’s failure to challenge Mr. Soybel’s appointment at an earlier stage of the appellate proceedings, rather than on the appointment itself. To this end, I think it notable that the Supreme Court’s decision in Nguyen was 5-4, with a dissent authored by Chief Justice Rehnquist that would have affirmed the Ninth Circuit despite the improper participation of a non-Article III judge. The dissenters in Nguyen found the issue forfeited by the failure to object, and undeserving of plain error relief “because even assuming that the error affected petitioners’ substantial rights, it simply did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” 539 U.S. at 84 (Rehnquist, C.J. dissenting). There is no claim of prejudice raised in Appellant’s brief to CAAF. Rather, while analogizing his case to Nguyen, Appellant claims that “prejudice is irrelevant.” App. Br. at 10. I think it very likely that at least a few judges at CAAF – if not a majority – might see the fractured decision in Nguyen and its not-perfectly-analogous facts as an opening to apply plain error review in this case.
However, I can’t help but marvel at the deep well of patience that CAAF has had for the Air Force military justice system. While the court is not charged with general supervision of military justice, the Air Force has avoided any significant criticism in CAAF’s resolution of the problems at the Air Force CCA (our #9 military justice story of 2013). CAAF’s decision in Janssen focused on the actions of higher authority (the Secretary of Defense), and its decision on the delay issue in United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), gave the Air Force little more than a tap on the wrist (merely noting that “the trend of delay at the Air Force CCA is troublesome . . .” Merritt, 72 M.J. at 492, slip op. at 23).
Perhaps that well has run dry. CAAF is not only revisiting the appointment of Mr. Soybel in this case, it is also revisiting the issue of delay at the Air Force court in United States v. Gutierrez, No. 13-0522/AF (grant discussed here). The court may be ready to address why a service as large as the Air Force seems to have so much trouble ensuring appellate due process for its members.
• AFCCA opinion
• AFCCA opinion on reconsideration
• Blog post: Here come the trailers
• Blog post: CAAF to re-examine the Soybel appointment
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview